The idea of punishment in international human rights discourse: A conceptual and historical critique

The idea of punishment is typically framed in human rights and legal scholarship in terms of the principle of legality, the due process, and the prohibition of certain forms of punishment deemed cruel, inhuman and degrading. This study seeks to shift the focus towards deeper penological questions of what the State can justifiably punish, how, and why. It probes how international human rights discourse relates to these questions.
Using inter-disciplinary discourse analysis, the study exposes certain paradoxes that underpin the ‘International Bill of Human Rights’, academic commentaries, and the global human rights monitoring regime in relation to the idea of punishment. Drawing on archival material, the study demonstrates that the international penal discourse produced during the late nineteenth and early twentieth century – under the influence of positivist criminology, socialism, and Christian-Quaker spirituality – laid greater emphasis on offender rehabilitation, and was more attentive to the social context of crime than is the case with modern human rights discourse.
The study argues that this discourse, owing to its theoretical kinship with Kantian philosophy, embodies a paradoxical commitment to human dignity on the one hand, and retributive punishment on the other. Further, it sustains the split between criminal justice and social justice, which results in a sociologically ill-informed understanding of punishment.
Human rights discourse plays a paradoxical role vis-à-vis the punitive power of the State as it seeks to counter criminalisation in some areas and backs longer prison sentences in others. The underlying priorities, this study suggests, have been shaped by a number of historical circumstances. These include the experience of the Holocaust, the assault on the rehabilitative ideal and the emergence of identity politics in the 1970s, and the global spread of neoliberalism and the revival of the ‘Nuremburg spirit’ in the 1990s.
In conclusion, the study endorses the importance of human rights in countering the abuse of power. However, it also signposts the relevance of other moral vocabularies, such as social justice and reconciliation, against the backdrop of conceptual shortcomings in classical penal theory as well as the doctrine of human rights, and the overwhelmingly negative impact of imprisonment on offenders, their families, and the society at large.